Can Utah's signature removal provisions unduly burden initiative rights? Count My Vote v. Cox Explained

The Utah Supreme Court’s decision in Count My Vote v. Cox presents a complex examination of the constitutional boundaries surrounding Utah’s initiative process, particularly the tension between legislative regulation and voters’ fundamental right to propose legislation.

Background and Facts

Count My Vote, Inc. and other petitioners sought to place the Direct Primary Initiative on the 2018 ballot. After gathering over 150,000 signatures and meeting statutory requirements, an opposition group called Keep My Voice organized a targeted campaign during a thirty-day period when petitioners could no longer gather additional signatures. This “extra-month provision” allowed signature removals to continue for thirty days after sponsors submitted their petitions, ultimately causing the initiative to fall below the required threshold in three senate districts by a narrow margin of 572 signatures.

Key Legal Issues

The case raised multiple constitutional challenges: statutory interpretation of the signature removal provision, equal protection claims under the one-person, one-vote doctrine, uniform operation of laws violations, and most significantly, whether the initiative statute’s provisions created an “undue burden” on the fundamental right to initiative under article VI, section 1 of the Utah Constitution.

Court’s Analysis and Holding

The court rejected the statutory interpretation argument, holding that third parties may assist in submitting signature removal forms. On equal protection grounds, the court distinguished Gallivan v. Walker, noting that current senate districts have roughly equal populations, eliminating the power disparity concerns from that earlier decision. For uniform operation of laws claims, the court found no disparate treatment of similarly situated persons, as initiative sponsors and opponents serve fundamentally different roles in the process.

Most notably, the court declined to reach the merits of the article VI claim, citing insufficient factual development and unresolved questions about the governing legal standard. The court acknowledged that its “undue burden” test from Utah Safe to Learn lacks precision and may require future clarification.

Practice Implications

This decision highlights significant procedural and substantive challenges for initiative litigation. The court’s reluctance to resolve the constitutional question on extraordinary relief emphasizes the importance of developing a complete factual record in district court. Justice Himonas’s concurrence raises important questions about the appropriate standard of review for fundamental rights claims, while Justice Petersen’s dissent demonstrates how the same facts can support different constitutional conclusions under current precedent.